574 F.2d 1195 (5th Cir. 1978), 76-4314, Richardson Paint Co., Inc. v. N.L.R.B.

Docket Nº:76-4314.
Citation:574 F.2d 1195
Party Name:RICHARDSON PAINT COMPANY, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
Case Date:June 12, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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574 F.2d 1195 (5th Cir. 1978)

RICHARDSON PAINT COMPANY, INC., Petitioner, Cross-Respondent,


NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 76-4314.

United States Court of Appeals, Fifth Circuit

June 12, 1978

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[Copyrighted Material Omitted]

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Randolph P. Tower, Theo. F. Weiss, San Antonio, Tex., for petitioner, cross-respondent.

Elliott Moore, Deputy Assoc., Gen. Counsel, Michael S. Winer, Supervisor, Ruth E. Peters, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, N.L.R.B., Washington, D. C., for respondent, cross-petitioner.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before THORNBERRY, GOLDBERG, and CLARK, Circuit Judges.

GOLDBERG, Circuit Judge:

This case is before the court on a petition to review and set aside an order of the National Labor Relations Board and on cross application by the Board seeking enforcement of its order. In the proceedings below, the Administrative Law Judge (ALJ) found that the petitioner, Richardson Paint Company, Inc. ("Richardson" or "the Company") violated Section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 151 et seq., by laying off three employees, Bass, Bryant and Bowling, who had engaged in protected concerted activity, and by discharging one employee, Tipton, for similarly unlawful reasons. The ALJ further held that certain threats by Richardson's management interfered with and coerced employees in the exercise of their protected rights. The National Labor Relations Board, one member dissenting, agreed with the ALJ's ultimate conclusion that the layoff of three employees was in violation of Section 8(a)(1), but reached its conclusion based on a somewhat different rationale and on different evidence. The Board unanimously agreed with the findings and the conclusions of the ALJ with respect to the discharged employee.

Recognizing the deferential standard of review appropriate to review of NLRB findings, we nevertheless feel compelled to agree with the petitioner and dissenting Member Walther that the General Counsel failed to prove that the layoff of Bass, Bryant, and Bowling was in violation of the Act. We therefore set aside and decline to enforce the Board's order with respect to that layoff. We do, however, find substantial evidence in the record to support the unanimous conclusion of the ALJ and all three members of the Board that Richardson's discharge of Tipton constituted an unfair labor practice under Section 8(a)(1) and accordingly enforce that portion of the Board's order.


Richardson Paint Company, Inc. is a Wisconsin corporation with its principal office located in Austin, Texas. The Company specializes in industrial painting for public utilities, including both existing facilities and new construction. Richardson's workforce consists of two types of employees, "permanent," or "cadre" painters, who are highly skilled in painting energized electrical equipment and are moved by the Company from job site to job site, and "temporary" painters, generally less skilled, who are recruited from the locale for a particular project and are employed only for the duration of that project. The Company is a "union" company; its "permanent" painters are covered by a national contract with the International Brotherhood of Painters and Allied Trades, while "temporary" painters are covered by local contracts with union locals.

Richardson contracted to paint a large steam electric power station under construction near Monticello, Texas, and began work on this job site in February of 1972. The Company signed a contract with the Union at the inception of the Monticello

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job, and all non-supervisory personnel at the site were provided by Local 459 of the Union.

Employment requirements at the Monticello site varied, depending on the amount of construction work completed by other contractors at the job site and on the suitability of climatic conditions for outdoor painting. The project experienced a number of significant layoffs from its inception in 1972, including layoffs in the autumns of 1972 and 1974. As of July, 1975, Richardson employed three crews of painters totalling some thirty workers at Monticello. At that time, Richardson's operating superintendent, J. D. Johnson, spoke to Lem Watson, the Company's on-site job superintendent, and Jack Leath, another on-site superintendent, about the need for another layoff. Watson and Leath responded that they wanted to get more of the outside work completed prior to the onset of anticipated bad weather. A layoff of six employees did, however, take place on October 8, 1975. That layoff and associated events are the subject of the NLRB charge in this case. Subsequent to those events, a further layoff occurred in January of 1976, after the NLRB charge was filed, and an additional layoff was imminent at the time of the NLRB hearing. 1

The steps leading to the disputed layoff originated early in the construction period. The Monticello facility consists of three large units, each with its own steam turbine. During the final construction stage for each unit, the steam turbine goes through a "blowdown" phase which lasts 2-3 weeks. The purpose of the blowdown is to remove the residue material and impurities which get into the turbine during construction of the unit. This blowdown procedure is accompanied by a great deal of noise. Although other employers at the Monticello site furnished ear protection to their employees for use during the blowdowns, Richardson did not.

When the blowdown for the first power station unit occurred in 1974, employees on the crew supervised by Foreman Buddy Pate complained to their Union job steward, Bill J. Bass, about the lack of ear protection. Bass approached Lem Watson, the Company's job superintendent at the Monticello site, who responded that the collective bargaining agreement between the Company and the Union did not require the Company to furnish ear protection to its employees. When the blowdown for the second unit occurred in July, 1975, crew members again approached Bass and also Foreman Pate about the need for ear protection. Watson, when contacted, again responded that the Company was not required to furnish ear protection.

In September, 1975, the Company issued numbered identification buttons to be worn by its employees. Pate picked up the buttons for his crew at the Company's on-site office on the morning of September 15. At a meeting with his crew later that morning, Pate told his men that they were required to accept and wear the buttons. The crew members had previously told Pate that since the Company would not furnish ear protection because it was not provided for in the contract, they would not wear the buttons because the buttons were not provided for in the contract. None of the crew members accepted the buttons from Pate. Pate and Bass then went to see Watson. Bass told Watson that the crew members did not feel obligated to wear the identification buttons because of the Company's failure to provide ear protection. Watson became upset and said that the employees had to wear the buttons. Bass and Watson then telephoned Jack Dudley, the Union business agent, who said that he would be there the next morning to straighten the matter out. Bass and Pate then went back to work.

Pate had lunch on September 15 with the foremen of the other two painting crews and other Company supervisors. During

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lunch, Watson informed Company Operating Superintendent J. D. Johnson that Pate's crew refused to wear the identification buttons. Johnson told Pate to inform the men that they either had to wear the buttons or "hit the gate." After lunch, Pate called his crew together and related Johnson's ultimatum. The crew members again said that they were not going to wear the buttons; shortly thereafter, however, two members of the crew accepted buttons from Pate and went back to work. The other crew members and Pate walked off the job, in violation of the no-strike provision of the collective bargaining agreement between the Company and the Union.

Union International Representative Herby Beard, Business Agent Dudley, and Johnson met on the evening of September 16 and worked out an agreement, the terms of which provided that the employees who had walked out would be allowed to return to work. Pate's crew members would be expected to wear the identification buttons and not to discuss the incident with other employees. In return, the Company agreed to furnish ear protection, and Johnson assured Beard that the Company would not retaliate against the employees who had participated in the walkout. Watson did not want to take Pate's crew members back on the job, but Johnson ordered him to do so. The crew members returned to work on September 17. Also at that time, Bill Bass was replaced as Union steward by Paul Steward, a member of Pate's crew who had not participated in the September 15 walkout. 2

Work went as usual for Pate's crew until October 8, 1975, when three members of the crew Bass, Jack Bowling and Danny Bryant were laid off, along with three employees from the other two painting crews, who were not involved in the September 15 walkout. Watson decided which employees were to be laid off and when in terms of a particular date the layoff was to take place.

On the morning of October 9, the day after the layoff, Bass met Keith Tipton at the site and gave him a petition protesting the layoff. Tipton, a member of Pate's crew, had been absent from work on September 15 and did not participate in the walkout. Tipton obtained some signatures on the petition during the morning break, and left his work...

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